Construction of will. In Prestwidge v. Groombridge, (c) the court was called upon to put a construction upon some very blind words, which, had very obscure the case occurred a century ago, would probably have been held to be too uncertain to create a gift. The testatrix directed the interest of her residuary estate to be applied in defraying the expenses of the education of her nephews, George and Charles, and the principal to be applied either in binding them apprentices at the age of fourteen, or to be reserved till they attained twenty-one, to commence business, and added, "In the event of the elder boys George and Charles (both or either of them) being settled before this will comes in force, I provide that the next boy (James or Henry) have the benefit, and so on." George and Charles survived the testatrix, but died under twenty-one. The residue was claimed by James, as being, in the event which had happened, solely entitled. Henry claimed to participate; and the next of kin also put in a claim to the residue as undisposed of. Sir L. Shadwell, V. C., held James and Henry to be entitled. The intention of the testatrix, he considered, was to make a provision out of the fund for two of her brother's sons; and if the provision failed as to either George or Charles, that James should be supported out of it, and if it failed as to both, Henry also should be supported out of it. In Powell v. Davies, (d) where M. devised a freehold estate to A for life, and, after his decease, to be equally divided into four parts, between one child of A, one child of B, one child of C, and one child of D, for them to receive the rents and divide the money between them; and it was his desire that the estate should never be sold out of the family, provided that if A, C and D should never have lawful children, his desire was that their parts should go to the next of kin. At the date of the will, B had one child born, and the others were unmarried; but after the testator's death, each of them had several children. It was held that the devise was not void for uncertainty, but that the eldest child, whether male or female, of each of the four persons, took a vested estate. Lord Langdale considered that the absence of a devise over of the share of B, who had one child, indicated the testator's intention that the existing child should take that share, and that in each instance the eldest or only child should *be entitled, [since the share vested in him immediately on his birth, and thereupon the gift over failed. (c) 6 Sim. 171. (d) 1 Beav. 532, [and see Ashburner v. Wilson, 17 Sim. 204; Wilson v. Wilson, 1 De G. & S. 152. legacies not tainty of object. void for uncer It must be remembered, that, with respect to charities gifts may be good, which, with respect to individuals, would be void. Charitable We have seen that charitable bequests are not void for uncertainty in the object; (e) and where there are two charities of the same name, the legacy will be divided between them, if it cannot be ascertained which was the intended object. (ƒ) In the case of individuals, the gift would be void for uncertainty. In one case, however, the gift was to the first cousins of the testator, children of his father's brother, of the name of C.: the father had two brothers of the name of C., both of whom had children; and the gift was held to take effect in favor of the children of both brothers. (g) The decision seems opposed to all the other authorities on this subject. However, where a testator bequeathed "to the surgeon and resident apothecary of the Dispensary at B." £19 198. each, or any who may hold the like situations at my decease, and it appeared there was no apothecary, but two surgeons and a dispenser, those persons were each held entitled to a legacy of the specified amount, although in other bequests the testator had used the word surgeons in the plural. (h) Where there are in the same testamentary paper gifts to each of two objects, one of which does not exist, it will be considered that the objects are not identical, and one gift will fail, though either gift standing alone would have been a good gift to the existing object.] (i) IV. It is clearly not essential to the validity of a devise that all the particulars which the testator has included in his description of the subject or object of gift should be accu All particulars in description of subject-matter of disposi be correct. rate. There need only be enough of correspondence to tion need not afford the means of identifying both. (k) Thus, the devise of a house or field, de*scribed by name, is not rendered uncertain by (g) Hare v. Cartridge, 13 Sim. 167. (h) Ellis v. Bartrum, 25 Beav. 109. (i) Lee v. Pain, 4 Hare 254; see also Douglas v. Fellows, Kay 114. But in In re Maguire, L. R., 9 Eq. 632, the existing object (a charity) got not only its own legacy, but (through cy pres) the other also. (k) See Purchase v. Shallis, 2 H. & Tw. 354, 14 Jur. 403, 19 L. J., Ch. 518; Howard v. Conway, 1 Coll. 87; Stephens v. Powys, 1 De G. & J. 24.] its being mentioned to be in the occupation of a person who is not the occupier; for as the property was adequately described in the first instance, this erroneous and unnecessary addition does not vitiate the devise. (1) And even if it should turn out that part only of the house or field so named was in the occupation of the person designated by the testator as the occupant, the whole nevertheless would pass. (m) A reference to occupancy often comes in aid of a defect or error in the locality, and vice versa. Thus, a devise of "my lands Mistake in loat Bramstead, in the county of Surrey, in the occupation cality of lands. of John Ashley," has been held to pass lands in the occupation of John Ashley, at Bramstead, in the county of Hants. (n) Even without the reference to the occupancy, however, in this instance the description would have been sufficient, for the misnomer of the county in which a parish is situate produces no uncertainty, unless the testator should happen to have property answering to the description in a parish of that name in more than one county. (o) It has even been held that a devise of houses and lands lying in the parish of Billing, and in a street called Brook-street, is a good devise of lands in Billing-street, the testator having no lands in the parish of Billing. (p) pass as "free So it is clear that a leasehold estate will pass under the description of freehold, where the reference to its name or local situa- Leasehold will tion, and the fact of the testator having no freehold estate hold." answering thereto, leave no doubt of the identity; (g) and vice versa. (r) It has been adjudged, too, that under a devise of buildings in a specified street, houses situate in a lane contiguous to, and opening into, that street pass, for want of a subject more nearly answering to the description. (8) (1) Blague v. Gold, Cro. Car. 447, 473; Thompson v. Tonson, And. 188, 2 Leon. 120. Doe d. Dunning v. Lord Cranstown, 7 M. & Wels. 1. (8) Doe d. Humphreys v. Roberts, 5 B. (m) Chamberlaine v. Turner, Cro. Car. & Ald. 407, post; but observe that these 129. cases were before 1 Vict., c. 26, the effect (n) Halstead v. Searle, 1 Ld. Raym. of which on such questions of construc728. (0) See Owens v. Bean, Finch 395; Brown v. Longley, 2 Eq. Cas. Ab. 416, pl. 14. (p) Brownl. 131, 8 Vin. Ab. 277, pl. 7. (q) Denn d. Wilkins v. Kemeys, 9 East 366. (r) Day v. Trig, 1 P. W. 286, post; tion is remarked upon post ch. XIII.; [see also Baddeley v. Gingell, 1 Exch. 319, where houses in an inclosed yard opening into a street, were held to be houses "within the street," so as to be liable to a rate imposed by statute on "houses within the street."] of objects need not be The same principles of construction, of course, apply to objects *of gift. It is sufficient, therefore, that the devisee or legatee In description is so designated as to be distinguished from every other all particulars person, and the inaptitude of the particulars introduced correct. into the testator's description is immaterial; and this whether the object of the gift be a corporation or an individual. Thus, a devise to the mayor, jurats, and town-council of the ancient town of Rye," has been held to be good, though they were incorporated by the name of "the mayor, jurats, and commonalty." (t) A bequest Misnomer of "to the fellows and demies of Magdalen College, Oxford," corporations. however, has been decided not adequately to designate Magdalen College, whose corporate name or style is, "The president and scholars of St. Mary Magdalen." (u) [But where money was bequeathed to the provost and fellows of Queen's College, Oxford, to purchase books to be added to the library, the proper name of the corporation being "the provost and scholars, &c. :" the corporation was held to be entitled, principally on the ground that the library belonged to the body corporate, who were, therefore, the proper persons to make additions to it. (x) And where a bequest to "the Westminster Hospital, Charing Cross," was claimed by the Westminster Hospital in Broad Sanctuary, and also by the Royal Ophthalmic Hospital, and by the Charing Cross Hospital, Agar street, Strand, the latter was held entitled, as being nearest to the locality mentioned, and as being a general hospital: (y) the testator, when he intended to give to a hospital of a special character, having so named it. (z) And where the description is equally applicable to two different objects, either of which would have been sufficiently designated if the other had not existed, evidence is admissible to remove the ambiguity, by showing which of them was known to the testator, and (if a charitable institution) to which of them he subscribed. (a) If this evidence fails to indicate which the (t) Att.-Gen. v. Corporation of Rye, 1 J. B. Moo. 267, 7 Taunt. 546. See also Fitz. Dev. 27, Dalison 78, 8; 10 Rep. 57; Foster v. Walter, Cro. Eliz. 106, 2 Leon. 165. But as to gifts to corporations, vide ante p. *65. (y) See acc. In re Alchin's Trusts, L. R., 14 Eq. 230. (2) Bradshaw v. Thomson, 2 Y. & C. C. C. 295; and see Wilson v. Squire, 1 Y. & C. C. C. 654; Smith v. Ruger, 5 Jur. (N. 8.) 905. (a) In re Kilvert's Trusts, L. R., 7 Ch. 170; In re Fearn's Will, W. N. 1879, (u) Att.-Gen. v. Sibthorp, 2 R. & My. 107. [(x) Queen's College v. Sutton, 12 Sim. p. 8. 521. testator meant, the bequest fails, unless, as already noticed, it is charitable and applicable cy pres. (b) General rule as to name. As a general rule, veritas nominis tollit errorem demonstrationis; so that where there is a person to answer the name, it *will be immaterial that any further description does not precisely apply.] Thus a bequest to C. M. S. and C. E., legitimate son and daughter of C. S., was held to be a good bequest to persons of those names, though they turned out to be illegitimate, in consequence of an anterior marriage of their father being established. (c) [And the rule has prevailed, although besides a wrong or inaccurate description, one of the Christian names of the legatee was omitted; a gift to "my niece Elizabeth" being held a sufficient description of Elizabeth Jane, a great grand-niece. (d) But nihil facit error nominis cum de corpore constat ; (e) and there Misnomer of are many cases in which the description is such as to lead individuals. to an irresistible inference that the person named was not the person in the testator's mind.] Thus, where (f) the devise was to William Pitcairne, eldest son of Charles Pitcairne, it was insisted that the eldest son had no title, because his name was not William, but Andrew; nevertheless the court was of opinion that the words were sufficient to point him out with certainty. James entitled under gift to John. So (g) under a bequest to "John and Benedict, sons of John Sweet," a son named James (there being no John) was held to be entitled. It was proved, too, that the testator used to call him Jackey; but Lord Hardwicke appears to have thought this evidence unnecessary to establish his title. Again, where (h) a testator gave an annuity to his brother Edward Parsons for life, and, after his decease, the same to go Edward, writ for Samuel. ten by mistake equally among his (E. P.'s) children, "by his present wife;" and at the date of the will, the testator had no brother except one named Samuel, who had a wife and children; but four or five years before, he had a brother named Edward, who as well as his wife, was then dead, which fact was known to the testator, (b) In re Clergy Society, 2 K. & J. 615.] (c) Standen v. Standen, 2 Ves., Jr., 589, 6 B. P. C. Toml. 193; [and see Doe d. Gaines v. Rouse, 5 C. B. 442; Giles v. Giles, 1 Kee. 685; In re Blackman, 16 Beav. 377; Ford v. Batley, 23 L. J., Ch. 225; Pratt v. Mathew, 22 Beav. 334. (d) Stringer v. Gardiner, 27 Beav. 35, 4 De G. & J. 468. (e) 11 Rep. 21, a.] (ƒ) Pitcairne v. Brase, Finch 403; see also Gynes v. Kemsley, 1 Freem. 293; Rivers' Case, 1 Atk. 410. (g) Dowset v. Sweet, Amb. 175. |